컴퓨터 압수, 수색의 문제점 (Considering Search and Seizure of Computer)

서지정보

· 발행기관 : 한국형사법학회
· 수록지 정보 : 형사법연구 / 20권 / 2호 / 129 ~ 148페이지
· 저자명 : 박용철

초록

General warrants for search and seizure should neither be issued nor be executed. Warrants, as one of most intrusive means to interfere with a person's privacy, banning general warrants is the top priority that the law enforcement should give a lot of weight to. The Principle has been embodied to detailed rules such as (1) the warrants for search & seizure should specify the objects, place to be searched and seized, (2) the warrant should be issued and executed upon probable cause.
The traditional notion on search and seizure of things does not show the prefect fit when it comes to the application to computer search and seizure. The fundamental reason of such clash is the evidence the law enforcement can get out of computer search and seizure is totally different from the traditional search and seizure. Computer, as a means to store tons of information, is not an easy ‘place' that you can find any viable evidence if you only stick to the traditional way of searching and seizing the evidence. Computer search and seizure has been done using different methods. While practicing such new methods, the law enforcement has met the situation where general warrants is much more in need. The current warrant for search and seizure seems to be broken which cannot be applied to computer evidence. However, obviously, this new attempt cannot be allowed for the sake of protection of a person's privacy. In the end, computer search and seizure has become a new frontier that not many scholars and lawyers should give great input to.
In Korea, probably the methods used to search and seize the computer related evidence is likely to be simliar to the ones used in the United States. Also the requirement that the object and place for search and seizure should be specified as noted in the rules of the United States. However, there is no specific notion on probable cause when the Warrant is being issued and executed. That is a partial reason making any exception to the warrant requirement in regards to computer search and seizure. Without probable cause the law enforcement is forcefully tied to observing the warrant word by word. A new set of rules to solve the computer search and seizure should be introduced.

영어초록

General warrants for search and seizure should neither be issued nor be executed. Warrants, as one of most intrusive means to interfere with a person's privacy, banning general warrants is the top priority that the law enforcement should give a lot of weight to. The Principle has been embodied to detailed rules such as (1) the warrants for search & seizure should specify the objects, place to be searched and seized, (2) the warrant should be issued and executed upon probable cause.
The traditional notion on search and seizure of things does not show the prefect fit when it comes to the application to computer search and seizure. The fundamental reason of such clash is the evidence the law enforcement can get out of computer search and seizure is totally different from the traditional search and seizure. Computer, as a means to store tons of information, is not an easy ‘place' that you can find any viable evidence if you only stick to the traditional way of searching and seizing the evidence. Computer search and seizure has been done using different methods. While practicing such new methods, the law enforcement has met the situation where general warrants is much more in need. The current warrant for search and seizure seems to be broken which cannot be applied to computer evidence. However, obviously, this new attempt cannot be allowed for the sake of protection of a person's privacy. In the end, computer search and seizure has become a new frontier that not many scholars and lawyers should give great input to.
In Korea, probably the methods used to search and seize the computer related evidence is likely to be simliar to the ones used in the United States. Also the requirement that the object and place for search and seizure should be specified as noted in the rules of the United States. However, there is no specific notion on probable cause when the Warrant is being issued and executed. That is a partial reason making any exception to the warrant requirement in regards to computer search and seizure. Without probable cause the law enforcement is forcefully tied to observing the warrant word by word. A new set of rules to solve the computer search and seizure should be introduced.

참고자료

· 없음